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PublicationInnovationsoffenheit als Verfassungsgrundsatz(Universität St. Gallen, 2021-09-20)The interpretation of Art. 64 para. 1 BV with the wording The Confederation shall promote [...] innovation. shows that the federal promotion of innovation is based on a classical understanding, which sees the promotion of innovation as the continuation of the promotion of research. However, this view on innovation neither shall nor can be used uniformly in the context of reading the constitution; the (constitutional) legal concept of innovation does not exist. In addition to the direct promotion of innovation, which is largely left to the legislative body to shape, the provision obliges the federal government to ensure conditions for research and innovation are favorable. It therefore expresses openness to innovation. Central aspects of openness to innovation are also deducible from other constitutional norms such as the fundamental rights, the principles of the rule of law and the principle of economic freedom. As a component of the principle of the rule of law, the constitutionally mandated openness to innovation has to be adhered to on all levels of the government, i.e. by all legislative bodies when designing and passing new legislation and by all bodies applying and interpreting the laws. Through the principle of proportionality as a guideline for state action, central aspects of the constitutionally founded openness to innovation acquire legal binding force. Thereby, bodies applying the law have to consider openness to innovation in the context of the proportionality evaluation, whereas the legislator is not only obliged to take it into account while enacting new legislation, but is also bound by it to monitoring and improving obligations.
